Factual and Procedural Summary:
Claimant was driving a semi-truck on the freeway when she noticed a burning smell. She heard an explosion coming from the passenger side of the vehicle and quickly opened the door and jumped out, away, and down from the truck, about a three-and-a-half foot drop, because she thought the truck would explode. She moved to the passenger side and saw that a tire had caught fire. Still afraid that the fuel tanks would explode, she called 911 and distanced herself from the truck. Firefighters allowed the fire to burn itself out, destroying the vehicle and its contents.
A few days later, Claimant reported pain in her legs and back from the jump down off the truck. Claimant’s treating physician and JBS’s medical consultant both concluded that the aggravation of claimant’s preexisting knee and lower back injuries were medically caused by the jump from the truck, as was a fresh injury to the knee.
Employer appealed the decision of the Labor Commission Appeals Board, which determined that jumping out of the cabin of a semi-truck under exigent circumstances was an unusual and extraordinary exertion.
Issue 1: Whether the finding that Claimant jumped from the truck under exigent circumstances was supported by substantial evidence.
JBS only highlighted the evidence in its favor and did not marshal the evidence supporting the Commission’s factual findings. “While an appellate court is not required to assume that the record supports the findings of the fact-finder in the absence of marshaling, it may do so at its discretion.” Accordingly, JBS has not met its burden of persuasion.
Issue 2: Whether jumping down forty (40) inches from a truck that has just caught fire amounts to an unusual and extraordinary exertion.
Yes, the “exigent circumstances” forcing the petitioner to hurry and preventing her from taking “precautionary measures not to land awkwardly” made the jump distinct from any activities expected of the public. Id. at ¶ 20.
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